AA-R(Iran) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rafferty,Sir Stanley Burnton,Lord Justice Tomlinson |
| Judgment Date | 12 July 2013 |
| Neutral Citation | [2013] EWCA Civ 835 |
| Docket Number | Case No: C5/2013/3127 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 2013 |
[2013] EWCA Civ 835
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER (UT)
AA/09808/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tomlinson
Lady Justice Rafferty Dbe
and
Sir Stanley Burnton
Case No: C5/2013/3127
Raza Husain QC and Ms Melanie Plimmer (instructed by Messrs Jackson & Canter) for the APPELLANT
Charles Bourne (instructed by Treasury Solicitors) for the Respondent
In a determination of 16 August 2010 the FTT allowed an appeal from the 22 June 2010 decision of the SoS in reliance on Article 3 of the ECHR but upheld her decision to exclude the Appellant from refugee status since he had committed a crime against humanity. On 9 October 2012 Rix LJ gave permission to challenge the 29 July 2011 conclusion of the UT upholding the decision of the FTT.
Ground 1 is that the UT erred in finding that the Appellant made a significant contribution to the general acts of the Basij. He argues that his local role and involvement in propaganda, budgetary and social activities did not cross the threshold for "significant contribution" so as to render him complicit in those general acts. In concluding to the contrary UT failed to have regard to a mandatory relevant consideration, the size and nature of the Basij in Iran.
Ground 2 The UT's decision is bad for want of proper, adequate and clear reasons. If the Secretary of State or the UT sought to rely on the local acts of the Basij as the relevant crimes against humanity (they did not) it was incumbent upon them to identify those acts so that they could be clearly advanced and tested.
The overwhelming majority of the evidence was not in dispute. The Basij is a paramilitary force which enforces ideological and what it considers to be Islamic values in Iran. The Appellant held the highest rank in his village, in command of 30 men in his district. He accepted presence on patrol duty outside his village, where he witnessed acts of violence and, in his contention reluctantly, handed people over to colleagues who beat them. Such local beatings were not identified as crimes against humanity but relied upon to show his significant contribution to the Basij's general acts.
The legal framework
ARTICLE 1F (a) Refugee Convention reads where relevant:
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
he has committed … a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; …"
Art 12(2)(a) of the EU Qualification Directive is in identical terms.
It is for the Secretary of State to prove on the balance of probabilities that an individual should be excluded: Al-Sirri.
The leading domestic case on Article 1F(a) is R (JS (Sri Lanka)) v SSHD [2011] 1 AC 184 ("JS"). Lord Brown said: "because of the serious consequences of exclusion for the person concerned the article must be interpreted restrictively and used cautiously".
The Rome Statute, the contemporary international instrument for Article 1F(a) purposes, is the starting point. Article 7 where relevant defines " Crimes against humanity" as:
"(1) … any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(e) Imprisonment or other severe deprivation of physical liberty
(f) Torture;
(h) Persecution …[on grounds which are] political, racial, national, ethnic, cultural, religious, gender
(i) Enforced disappearance of persons;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health."
In SK (Zimbabwe) v SSHD [2012] 1 WLR 2809 ("SK") the Court of Appeal considered the definition of "other inhumane acts of a similar character" under Article 7(1)(k). Rix LJ said:
"…the critical feature of the requirement of 'similar character' is that 'other inhumane acts' should be, by their nature and the gravity of their consequences, of comparable ('similar') character to the other enumerated crimes. What constitutes "other inhumane acts" of similar character is, of course, a matter of evidence, but also for judgment, and may depend on all the circumstances of the case."
Article 25 of the Rome Statute regulates individual criminal responsibility for a crime against humanity falling within Article 7. Article 25(3) provides:
"3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime; …"
Article 28 of the Rome Statute — command responsibility — provides that military commanders and superiors shall be criminally responsible for crimes committed by forces under their effective command and control, or by subordinates under their effective authority and control, as a result of failure to exercise proper control over such forces or subordinates, where they knew or ought to have known that such crimes were being or were about to be committed, and where they failed to take all necessary and reasonable measures to prevent their commission.
Art 12(3) of the Qualification Directive provides inter alia, that Article 1F(a) applies not only to those who personally commit crimes against humanity but also those "who instigate or otherwise participate in the commission of [crimes against humanity]".
In JS, Lord Brown said that the language of relevant provisions was wider than joint enterprise liability under domestic law. Accordingly "…….article 1F disqualifies those who make a substantial contribution to the crime, knowing that their acts or omissions will facilitate it. ….responsibility will attach to anyone …..contributing to the commission of such crimes by substantially assisting the organisation to continue to function effectively in pursuance of its aims." As to the mental element, "if a person is aware that in the ordinary course of events a particular consequence will follow from his actions, he is taken to have acted with both knowledge and intent" and therefore mens rea would be established if "the accused had personal knowledge of such aims and intended to contribute to their commission". Lord Hope said each case turns on its facts.
THE BACKGROUND
The Appellant, born on 9 January 1984, is a citizen of Iran. He arrived in the United Kingdom on 3 April 2007 and claimed asylum the following day. The Secretary of State's decision letter rehearsed his activities with the Basij and accepted the credibility of that aspect of his account. Her justification for exclusion was :
i) There were serious reasons for considering that the Basij conducted widespread and systematic attacks against the civilian population, which amount to crimes against humanity;
ii) The Appellant bore command responsibility for those crimes; from 2004 he bore command...
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